4. In 1973 he was employed as a storeman with Amalgamated Wireless (Australia) Limited. At that time he suffered what he described as a nervous breakdown. His condition was more precisely described by a Commonwealth medical officer as neuro dermatitis to which an anxiety state contributed. He was then aged 64.

5. On 21 March 1973 he made application for an invalid pension. Enquiries were made concerning his health and his means. On 15 August 1974 his claim was granted but the amount of his entitlement was assessed at nil because of the combined income and property of the applicant and his wife. On 9 May 1985 (11 years after the event) a delegate of the Secretary affirmed that original decision (I suspect in order to have the issues in this present application tested), and the matter formally comes before me as a review of that decision.

6. The applicant and his wife lodged claims for age pensions on 9 June 1977 and pensions were granted from that date but at a reduced rate.

7. There were a number of outstanding issues between the parties which have since been resolved. The only issue left for consideration in the present application is whether the Epping property should be taken into account in assessing "income derived from property" and in computing the value of the applicant's property at the relevant time. The period we are concerned with is from 21 March 1973, when application was made for the invalid pension, to 9 June 1977, when the age pension was granted.

8. The property has, of course, since been sold. We are concerned only with the closed period and the matters that should have been taken into consideration in assessing his entitlements for that period.

9. At the time of these events the relevant statutory provisions under the then Social Services Act 1947 were as follows:

appears -

. . .

"income derived from property", in relation to a person,

means income derived from property owned, whether alone

or jointly or in common with another person, by that

person, other than income which -

(a) consists of an annuity; or

(b) is derived from a file interest in property, not

being, where that person is a claimant or

pensioner or the spouse of a claimant or

pensioner, property which is the permanent home of

the claimant or pensioner;

. . .

30.(1) In the computation of the value of property for

the purposes of this part -

(a) there shall be disregarded -

(i) the value of any property which is owned by a

claimant or pensioner or by his spouse and is

the permanent home of the claimant or

pensioner;

. . .

(b) there shall be deducted the amount of any charge

or encumbrance lawfully existing on the property,

other than property the value of which is

disregarded under the last preceding paragraph;

(c) if, for any special reason, in any particular

case, the Director-General so directs, the value

of the whole or any part of the property of the

claimant or pensioner or of his spouse shall be

disregarded; and

(d) . . ."

10. It will be seen that whether calculating income or capital value, no account is to be taken of income derived from or value attributed to the "permanent home" of the claimant.

11. The applicant gave evidence that about the time that he retired and applied for the invalid pension, he learned that the Department of Main Roads intended to build an expressway which would go right through his property and that the department would probably wish to acquire the property in due course, either by purchase or resumption. Having regard to his experience with the two previous properties and to the precautions he had taken in acquiring this third property, I am prepared to accept that this news had a shattering effect upon him. This is particularly likely when one considers his medical condition at the time.

12. He gave evidence that he was so upset that he did not wish to see the property again. He immediately placed it on the market and went with his wife to live in a flat at Long Jetty on the Central Coast. This flat was in a block of flats owned by his wife's family and was to serve them as a temporary home for a short period.

13. They subsequently moved out and bought a block of land at nearby Toukley where they erected a garage. They lived in the garage until they were able to build a house on the land. This could only be done from the proceeds of sale of their Epping home. Eventually this came to pass, the Toukley home was built and they still live there.

14. In the meantime, Epping remained on the market for some four years. Clearly with a threatened resumption, it would not have been an easy property to sell. The applicant gave evidence that at the time his daughter was separated from her husband and had the care of two young children. He and his wife agreed to allow their daughter to stay in the house. They were glad that she agreed to this proposition as they regarded her as a caretaker. Having regard to their limited means, they needed something to cover the cost of rates and repairs until the property was sold. For this purpose their daughter, Mrs Wiltshire, paid the sum of $15.00 per week. At about this time, pursuant to a request from the respondent, the house was valued by the valuer general at $25,000. It will be seen that the amount paid by Mrs Wiltshire was approximately 2.5% per annum of the estimated value.

15. The applicant also gave evidence that at all relevant times, while he and his wife were living in Long Jetty or in the garage at Toukley, all their clothes, photographs, personal effects and furniture remained in the Epping house. I attach some importance to this evidence as an indication of the way in which Epping was still regarded by them as the family home.

16. The applicant (who was not represented) could not remember when the house was finally sold and could not produce any papers that might assist in establishing this date. At my request, therefore, enquiries were made of the local Council after the conclusion of these proceedings. It has now been established that the applicant and his wife transferred title of the property to the Department of Main Roads on 9 December 1981 for a consideration of $110,000. At the end of the closed period presently under consideration, the applicants therefore were still the owners. The property was still for sale. Their daughter was still in occupation.

17. On these facts it becomes necessary to determine whether at all relevant times the Epping property was the "permanent home of the claimant". That phrase is no longer used in the means test provisions of the Act. Section 6 AA provides that there is to be disregarded in calculating the value of the property of an applicant, the value of that person's interest in "the principal home of the person".

18. There does not appear to have been any detailed consideration of the meaning of the phrase "permanent home" as it appeared in the relevant parts of the legislation. Some assistance, however, can be derived from other decisions on analogous provisions.

19. It is clear, for example, that "permanent" cannot mean "until the end of time". Even the dictionaries permit of some finite boundaries of the concept. The Macquarie Dictionary defines permanent as "lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding". In Re Evans (Decision No. 540, 11 November 1984) it was held that the word "permanently" is to be construed as it has been under sections 23 and 24 of the Act, meaning "indefinitely" as opposed to "only for a time".

20. There have been some attempts to define "home". A singularly tautologous approach is to be found in Re Estlin 72 LJ Ch 687:

"Home means a place where you find, not only the

reasonable comforts of life according to your position

in life, but the comforts of what is known as a home."

21. A characteristic of a person's home is that he usually resides there. It is by no means necessary, however, that both go hand in hand. As Wilcox J. said in Hafza v. Director-General of Social Security, [1985] FCA 164; 60 ALR 674, few people are always at home. At pp. 680 and 681 he expanded on this theme:

"Physical presence and intention will coincide for most

of the time. But few people are always at home. Once a

person has established a home in a particular place,

even involuntarily (see Inland Revenue Commissioners v

Lysaght (1928) AC 234 at 248 and Keil v. Keil (1947) VLR

383. a person does not necessarily cease to be resident

there because he or she is physically absent. The test

is whether the person has retained a continuity of

association with the place (Levene v. Inland Revenue

Commissioners [1928] UKHL 1; (1928) AC 217 at 225 and Judd v. Judd

(1957) 75 WN (NSW) 147 at 149) together with an

intention to return to that place and an attitude that

that place remains "home" (see Norman v. Norman (1969) 16

FLR 231 at 236). It is important to observe, firstly,

that a person may simultaneously be a resident in more

than one place - see the facts of Lysaght and the

reference by Williams J to "a home or homes - and,

secondly, that the application of the general concept of

residence to any particular case must depend upon the

wording, and underlying purposes, of the particular

statute in relation to which the question arises. But,

where the general concept is applicable, it is obvious

that, as residence of a place in which a person is not

physically present depends upon an intention to return

and to continue to treat that place as "home", a change

of intention may be decisive of the question whether

residence in a particular place has been maintained."

22. His Honour was considering the meaning of the phrase "usual place of residence" then to be found in section 103 of the Act. A similar phrase, "residing permanently", was considered by Fox J. in Lin Ho v. Director General of Social Security 5 ALN N343. His Honour took a broad view of the concept in these terms:

"Having in mind the great variety of concepts concerning

residence, etc found in the relevant sections, I doubt

that it is possible to deduce a coherent scheme from

them. Partly for this reason, the deeming provisions,

which relate to the word 'resident', should not be

regarded as applying, or, at least, applying directly,

to the concept of 'residing permanently'. I think this

phrase connotes something different. It is not a matter

of finding residence, or that a person was a resident,

and then looking to see how permanent the situation was.

Rather is one looking to see whether there was a

situation in which the widow had a relationship to the

country of some closeness, - one of 'residing

permanently'. It is sufficient for present purposes to

say that the phrase means something akin to home; the

place with which she had her family or domestic ties."

23. It is clearly possible in the light of the reasoning in these cases for a person to have two homes at the same time. Such a philosophical concept was easily accepted in Herbert v. Byrne (1964), 1 WLR 519, where it was held that a man in the course of moving from one house to another may have a "home" in each place until the move is completed, and thus gain the protection of the Rent Acts.

24. In view of the meaning to be attributed to the adjective 'permanent', it also seems logically possible to have two permanent homes at the same time.

25. In the present circumstances, however, I do not consider that it necessary to go so far in order to resolve the issues.

26. I accept the applicant's evidence that at all relevant times, he had the necessary "relationship of some closeness" (Re Lin Ho (supra)), to the Epping property. The fact that all his personal belongings remained there, that his daughter was protecting the property in the circumstances surrounding its sale, and that he did not own any other home reinforce that conclusion. The fact that he did not reside in the home does not detract from its status as his permanent home. The reason for not residing there is easily understood.

27. The future ownership of the house was, as it transpired, in a state of uncertainty for eight years. It is by no means uncommon in Sydney for road resumption plans to be altered or abandoned. The proposed route may be varied or budgetary constraints may receive priority. The planning map is criss-crossed with expressways that exist only as vague proposals or even as expressions of hope. Until such time as the Department signed a firm contract to acquire the house, the applicant could not be sure that it would. Until that time, for all practical purposes, the applicant was unable to sell the house elsewhere. Until that time the applicant and his wife had to hold themselves in readiness to return in case the acquisition did not proceed. Until the time that the acquisition was completed and the proceeds accounted for, they were unable to build another home.

28. Having observed the applicant in the witness box, it is easy to accept that his initial reaction to the Department of Main Roads' news would result in an impetuous and emotionally charged act. It is also easy to understand that misunderstandings have obviously arisen between the applicant and the respondent over all these years. Mr Clark is a man who can be quite voluble, and does not always restrict his observations to matters that are relevant. A number of the forms included in the documents furnished pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 had clearly been prepared by officers of the department on information which they thought had been supplied by the applicant. I am quite sure that any view of events which they have taken, and any view in particular of the status of the Epping property which has been expressed, could easily arise from innocent misunderstandings on both sides. I have had the advantage of hearing the applicant at length and of hearing his evidence tested in cross-examination. Without in any way criticising those officers, I would prefer to accept his evidence where it contradicts any particulars in those applications.

29. I have come to the view that, at all relevant times the Epping property was his permanent home. It was put up for sale. It took a long time to sell because of the threatened resumption. It was occupied in a caretaking capacity during that hiatus by his daughter, whose personal circumstances made it appropriate at the time. His temporary flat at Long Jetty and the property at Toukley did not become his permanent home until such time as the proceeds of sale from Epping were available to enable him to build the Toukley home.

30. Having come to that conclusion, it follows that the amount paid to him by his daughter during the relevant period, and the value of the Epping house during that relevant period, should both be disregarded in assessing any entitlements governed by the means test.

31. The decision under review is, therefore, set aside and the matter is remitted to the respondent with the direction that entitlement to invalid pension be recalculated for the period between 21 March 1973 and 9 June 1977, having regard to the fact that at all relevant times the property at Epping was the permanent home of the applicant and his wife.